| CRIME — Restraint order — Risk of dissipation of assets — No evidence of any attempt to dissipate assets — Whether appropriate to make restraint order — Proceeds of Crime Act 2002, ss 40-43
In re B; [2008] WLR (D) 117
CA: Moses LJ, David Clarke and Cranston JJ: 17 April 2008
Where a defendant had not yet been charged with any criminal offence an inference of dishonesty in relation to the possibility that he might dissipate his assets could not be relied on and where there was no evidence of any attempt to dissipate assets there could be no justification for imposing a restraint order.
The Court of Appeal, Criminal Division, so held when allowing the appeal of B under s 43(2) of the Proceeds of Crime Act 2002 against the refusal of Judge Bursell QC, sitting at Bristol Crown Court to discharge a restraint order made pursuant to s 41 of the 2002 Act on 20 November 2007 by Judge Foley at the same court and subsequently varied on 26 November and 3 December 2007.
MOSES LJ said, giving the judgment of the court, that the appellant was the majority shareholder and managing director of a company, E Ltd, which dealt mainly in the supply of parts for aircraft. E Ltd had contracted to sell three aircraft for $700,000 to a South American company and the Crown’s investigation was concerned with the possibility that the planes were to be sold onwards to a source that intended to use them for the smuggling of drugs, giving rise to a reasonable cause to believe that the appellant had been involved in concealing or disguising criminal property, from which he had benefitted. The appellant was arrested and interviewed in relation to the allegation of money laundering in May 2007; he was further interviewed in October 2007 and was on bail until May 2008 awaiting possible further interview and a decision on whether to charge. In order to make the restraint order, Judge Foley had to be satisfied that there was reasonable cause to believe that the appellant had benefitted from the alleged criminal conduct: see s 40(2) of the Act. In their Lordship’s view, while that might have been the situation, an important feature of the case was whether the prosecution could prove that the appellant would dissipate his assets if the restraint order were to be lifted. Reference had been made to Jennings v Crown Prosecution Service (Practice Note) [2005] EWCA Civ 746; [2006] 1 WLR 182 which was important in establishing that where “dishonesty is charged, there will usually be reason to fear that assets will be dissipated”. However, that case also established the importance of the prosecution being alive to the possibility that there might be no risk in fact. In their Lordships’ judgment the prosecution had failed to explain how it could be said that this appellant would dissipate his assets in the future. The judge had found as a fact that the appellant had had opportunities to dissipate his assets but that he had not attempted to do so. Where a citizen, such as the appellant, had not as yet been charged with any offence it was particularly important to be sure. The disastrous consequences that the restraint order might have on the business was not a ground of appeal but did demonstrate how serious it could be when such a restraint order was made and the extent to which the appellant’s rights under article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms had been interfered with. It was by no means clear why this order had been made.
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